Mistakes in a Will

Generally, courts won't try to correct provisions that were based on mistaken assumptions by the will-maker.

Sometimes a person who makes a will is mistaken about something
important—how much property he owns, for example, or whether or not a close
relative is still alive, or the effect of a certain will clause. After the
person has died, unhappy family members may ask a probate court to change the
terms of the will to reflect what they are sure was the will-maker’s true
intent.

Those relatives probably shouldn’t bother hiring a lawyer. If
a will is properly signed and witnessed, its language is clear, and the person
who made it knew what the document said, courts almost never agree to hear
evidence about the circumstances under which it was made, except for
allegations that the will-maker was unduly influenced or lacked mental
capacity. You can’t blame the courts—if everyone were welcome to come in and
argue about what Dad really wanted,
the lawsuits would be endless.

Mistakes About Facts

Generally, if you know and approve of the contents of your
will, a court will not later throw out or change its terms, even if you included
a provision in your will because you were mistaken about a fact. For example,
take the case of a woman who left the “residue” of her estate—everything that’s
left over after specific gifts are paid—to a college, apparently thinking that
the residue wouldn’t be worth much. As it turned out, her assets were more
valuable than she knew, and the college inherited more than half of her estate.
After her death, there was a lawsuit, at which it became clear that the woman
would have left more money to relatives if she had known how much she had
actually owned. Still, said the court, it did not have the power to change the
terms of her will “merely because it was the result of a mistake of fact on her part.” (Holmes
v. Campbell College, 125 P. 25 (Kan. 1912).)

In any case, it’s not always clear, after a death, what was
a “mistake of fact” and what was an opinion. For example, a Georgia man left little
to his nephew after expressing the opinion that the nephew was “a ne'er-do-well
who drank a lot.” After the man’s death, however, other relatives produced
evidence that the nephew hadn’t touched a drink in 20 years and worked until he
retired. Was the uncle simply mistaken, and if so, should a court disregard the
part of his will pertaining to the nephew? The court declined to do so. After
all, it concluded, the deceased man lived less than a mile from his nephew, and
they saw each other daily. If he made his bequest in the belief that his nephew
was a lazy drinker, it was his deliberate decision. That his conclusion might
have been factually wrong didn’t give the court a reason to rewrite his will. (Yancey v. Hall, 458 S.E.2d 121 (Ga. 1995).)

Similarly, a man executed a codicil (amendment) to his will,
revoking substantial cash bequests to two beneficiaries in the original will.
In the codicil, he explained that he was revoking the will provisions because he
had already given gifts to the two beneficiaries. In fact, he hadn’t actually
made the gifts. Too bad, said the court when the would-be beneficiaries
challenged the codicil. The man knew whether or not he’d made the gifts, and he
went ahead and signed the codicil; the court would not go back and change his
words. (Witt v. Rosen, 765 S.W.2d 956
(Ark. 1989).)

Special state rules on mistake

Some states have made very limited exceptions to the general
rule. For example, under Georgia law, if a parent makes a will while mistakenly
believing his or her child is dead, the child may be entitled to inherit a
share of the estate. (Ga. Code Ann. § 53-4-58.)

Misleading statements by others

If, however, a will-maker makes a mistake by relying on someone’s
false statements, the result could be different. For example, the Vick family
of Mississippi had seven children. Some of the daughters told their mother that
she needed to leave all her property to the daughters, because their father planned
to leave all of his property to the sons. The mother, relying on this erroneous
statement, made a will that left her property to her daughters. (Estate of Vick, 557 So. 2d 760 (Miss.
1989).) Essentially, this is fraud—deceiving someone in order to profit. The
Mississippi court characterized the daughters’ acts as undue influence and set
aside the mother’s will.

Lack of testamentary capacity

If someone who’s making a will is mistaken about facts because he or she isn’t
of sound mind (“lacks testamentary capacity,” in legalese), a will is not
valid. The difference between lack of capacity and being mistaken about a
factual matter isn’t always clear-cut. But
generally, a mistake arises from external information; a delusion that would
indicate lack of capacity arises from an internal delusion that has no basis in
reason or reality.

Not Knowing What’s in the Will

Courts presume that someone who signs his or her will knows
what the document says. If someone challenges a will and presents convincing
evidence that the will-maker was mistaken about the contents of the will, the
court could refuse to admit the sill to probate.

As a practical matter, if someone signs a will without
knowing its contents, it’s probably not just a simple mistake. More than likely,
someone is exerting undue influence over a vulnerable person. For example,
relatives of an 82-year-old man drew up a new will for him and brought it to
him so sign shortly before his death, while he was hospitalized, weak and
sometimes confused. After the man’s death, his sons challenged the will, on the
grounds that their father didn’t know the terms of what he was signing and was
unduly influenced. The court ended up ruling that part of the will was invalid,
and noted that a will cannot express someone’s “testamentary intent” if the
person doesn’t know what it says. (Estate
of Turpin, 19 A.3d 801 (D.C. App. 2011).)

Mistakes in Execution of the Will

Courts sometimes, however, allow obvious mistakes in
execution—that is, signing and witnessing—to be corrected. For example, a
husband and wife signed each other’s (identical) wills by mistake. After the
husband died and the error was discovered, a New York probate court accepted
the document the husband had actually signed, and switched the wife’s and
husband’s names wherever they appeared in the will. (Matter of Snide, 52 N.Y.2d 193, 418 N.E.2d 656 (1981).)

A court is unlikely to accept a will for probate that had
been signed, but not witnessed properly, even if the will-maker mistakenly
thought it was valid. In a D.C. case, a will was challenged because only one
witness had signed. (The statute required at least two.) Several people offered
sworn statements stating that the deceased woman had intended the document to
be her valid will and had told others that she had finalized her will. But whatever
she may have mistakenly believed, the court ruled, she had not validly executed
her will. (Estate of Henneghan, 45
A.3d 684 (D.C. App. 2012).)